Dang and Dang (Child support)

[2019] AATA 3857

Dang and Dang (Child support) [2019] AATA 3857 (17 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016457

APPLICANT:  Ms Dang

OTHER PARTIES:  Child Support Registrar

Mr Dang

TRIBUNAL:  Member S Cullimore

DECISION DATE:  17 July 2019

DECISION:

The decision under review is affirmed.

This means that the care percentages remain at 100% to Mr Dang and 0% to Ms Dang for the period 14 June 2018 to 6 August 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. The following information is taken from the records of the Department of Human Services – Child Support (“the CSA”) and is not in dispute, and the Tribunal finds each matter as fact.

2. Mr Dang and Ms Dang are the parents of three children, now aged 18, 16 and 13.

3. From March 2014 onwards the care percentages were fixed at 62% to Ms Dang and 38% care to Mr Dang for each child.

4. On 18 June 2018 Mr Dang contacted the CSA and notified a care change.

5. On 10 October 2018 a delegate decided to change the care percentages to 100% to Mr Dang and 0% to Ms Dang for the period 14 June 2018 to 6 August 2018.

6. Ms Dang lodged an objection to that decision on 17 October 2018.

7. On 14 December 2018 an objections officer disallowed the objection.

8. On 2 May 2019 Ms Dang sought a further review by this Tribunal.

DOCUMENTARY EVIDENCE AND HEARING

1. The Tribunal had before it a bundle of documents provided by the CSA. This bundle is referred to in this decision as C1 to C450.

2. Both parties attended the hearing on 17 July 2019 via teleconference and gave evidence and made verbal submissions.

ISSUE

11.The issues to be decided by the Tribunal are:

·what are the correct care percentages for the period 14 June 2018 to 6 August 2018; and

·in any event, from what date can this Tribunal make a legally effective decision in this matter?

CONSIDERATION

The relevant child support law

12.The law relevant to this review is contained in the Child Support (Registration and Collection) Act 1988 (“the Act”) and the Child Support (Assessment) Act 1989 (“the Assessment Act”).

13.The CSA makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Assessment Act.

14.The legislative scheme requires a new care percentage determination to be made following notification to the CSA of a change of the care arrangements.

15.Under section 54F if the Registrar is notified that the actual care arrangements do not correspond with the existing care percentages, and if changing the care percentages would produce a change in the person’s “cost percentage”, then the Registrar must generally speaking make a new care determination.

16.Since May 2018 legislative changes have laid down complex rules for the CSA to determine whether in some circumstances care percentages should follow the terms of court orders, although those court orders are not being followed. These decisions, if made, are put in place for a limited time only and are known as “interim care determinations”.

17.Further, in some “special circumstances”, an interim care determination will be refused, and a single care percentage will be fixed which follows actual care.[1] These “special circumstances” include circumstances where the conduct of the parent with reduced care itself contributed to the reduction in care, e.g. via domestic violence, or neglect or abuse of the children.[2]

[1] Subsection 51(5) and see below

[2] The Child Support Guide at 2.2.4 gives examples

18.Care decisions are originally made by delegates. A person who is dissatisfied with such a decision may lodge an objection. A person dissatisfied with an objection decision regarding a care matter may apply for a review by this Tribunal.

19.The general rule that an objection to a child support decision must be lodged within 28 days of being notified of the decision does not apply to a decision regarding a care change: see subsection 81(1) of the Act. However, the date of effect of a care change which is made on an objection which is lodged outside of this timeframe is dealt with under section 87AA of the Act which provides that the date of effect of the objection decision is the day on which the person lodged the objection, unless the Registrar is satisfied that there are “special circumstances that prevented the person from lodging the objection” within the 28 day period.

20.In a similar way, if a care change is made on a review to this Tribunal, where the application for review is lodged outside of a 28 day timeframe from receipt by the applicant of the objection decision, section 95N of the Act provides that the decision of this Tribunal “has or is taken to have effect on and from the day on which the application [to it] is made” unless “the AAT is satisfied that there are special circumstances that prevented the application for AAT first review being made within” the 28 day timeframe.

21.The legislative intention is clearly that parents should act quickly to resolve care issues, so that child support can be assessed correctly.

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

22.The Tribunal considered all of the information on the CSA file and the evidence as presented by the parents both to the CSA and to the Tribunal.

23.The evidence was in summary that care percentages were previously reflecting court orders made on 14 March 2014.[3] The care percentages were 62% to Ms Dang and 38% to Mr Dang for all three children.

[3]C126

24.On 14 June 2018, there was a change in care. From that date onwards Mr Dang had sole care of all three children.

25.Mr Dang notified this care change to the CSA on 18 June 2018.[4]

[4] C64

26.On 7 August 2018 interim court orders were made that Mr Dang have sole care of all three children.[5]

[5] C334

27.By a delegate decision dated 21 August 2018 the CSA determined that Mr Dang had sole care of the children from 7 August 2018, and this care arrangement was reflected in the child support assessment.[6]

[6] C223

28.Importantly, that decision was not subject to any objection and is therefore not subject to this review.

29.Further care determinations were made by delegates on 10 October 2018 (which gave rise to the objection and application for review in this matter) and again on 4 December 2018.

30.The care determination made on 4 December 2018 fixed the care percentages at 62% to Mr Dang and 38% to Ms Dang and was subject to an objection by Mr Dang.

31.An objections officer on 15 April 2019 allowed his objection and refused to make any care change (i.e. care remained at 100%/0%).[7]

[7] C414

32.Reverting to the period of 14 June 2018 to 6 August 2018, which is the only period in issue in this matter, Mr Dang was paying Ms Dang child support in this period based upon the previous care percentages (62%/38%). The case was Registrar Collect. The effect of the delegate decision of 10 October 2018 was therefore that Ms Dang had been overpaid child support by Mr Dang for that period in the amount of $4,024.62.

33.A letter to Ms Dang of 10 October 2018 advised her of this overpayment.[8]

[8] C260

34.This letter was followed up by a similar letter dated 15 April 2019,[9] i.e. the date of the objection decision in the later care proceedings. In essence, this debt of $4,024.62 was confirmed by and was not created by the letter of 15 April 2019. This debt resulted from the care determination made by the delegate on 10 October 2018, as affirmed by the objections officer on 14 December 2018.

[9] C417

35.Ms Dang’s evidence was in essence that it was not until she had received the letter of 15 April 2019 that she realised that she had a large debt to Mr Dang. She stated that she had not received or if received had not understood the earlier letter of 10 October 2018.

36.In her evidence it was clear that she was (forgivably) confused about the sequence of events, about who had objected to which decision or decisions, and by the many care changes and consequential issuing of new or amended assessments of child support by the CSA.

37.As to the main issue of the correct care percentages for the period 14 June 2018 to 6 August 2018, the basis of the objection decision is that there were “special circumstances” in this case for refusing to make an interim care determination and for the care percentages to follow actual care (which was 100% to Mr Dang). Those special circumstances were in essence the alleged abuse and neglect of the children by Ms Dang. The objections officer found (in effect) that those factors triggered the care change on 14 June 2018.

38.Mr Dang raised these allegations with the CSA in the contact with them on 18 June 2018 and subsequently provided further details in his dealings with the delegate and the objections officer.[10] Ms Dang denied these allegations and stated that Mr Dang had unjustifiably taken the children from her.

[10] See e.g. his affidavit at C137.

39.Crucially, written and verbal reports by external agencies did provide evidence of some degree of abuse and neglect of the children by Ms Dang. A Notice of Risk was also lodged in the Federal Circuit Court and a domestic violence order was later made against Ms Dang. The reports concerned included reports from the [State] Child Welfare department, from Relationships Australia, and from a school counsellor.

40.It is not proper for the Tribunal now (in dealing with an issue of only six weeks of child support) to question the basis or contents of those reports or opinions on the issue of risk to the children by external agencies. Whether or not abuse or neglect occurred or is at riks of occurring is a matter for the courts dealing with these sorts of care issues to decide, based on proper evidence put before them by the parties. The Tribunal notes that court orders still provide effectively for sole care of the two younger children to Mr Dang (the oldest child has turned 18). It would be improper for the Tribunal in dealing with a secondary or consequential matter such as calculation of child support to question or alter findings or orders made by the family courts as to the primary matter of what care should be taking place.

41.The Tribunal therefore agrees with the objections officer that special circumstances did exist in this matter, and so care should follow actual care in the period 14 June 2018 to 6 August 2018.

42.There is also an important issue for Ms Dang of applying for AAT review out of time. As stated above, section 95N of the Act provides that the decision of this Tribunal in a care matter “has or is taken to have effect on and from the day on which the application is made” unless “the AAT is satisfied that there are special circumstances that prevented the application for AAT first review being made within” the 28 day timeframe.

43.Even if the Tribunal had found that there were no special circumstances within the meaning of subsection 51(5) of the Assessment Act, and that care should have followed the court orders for the period 14 June 2018 to 6 August 2018, as Ms Dang submitted, the Tribunal is satisfied that there was no factor beyond her control which could be said to have prevented Ms Dang from lodging her application for review within time. Rather, it seems that Ms Dang did not do so because she had overlooked or simply not understood that the debt of $4,024.62 raised on 10 October 2018 would stand until and unless she applied to this Tribunal to review the 14 December 2018 objection decision.

44.Accordingly, any care decision which the Tribunal could have made in this matter which might be more favourable to Ms Dang could only “have effect” from 2 May 2019.

45.By that date numerous further care determinations had been made by the CSA. Put another way, a decision legally effective from 2 May 2019 would have had no impact on the issue of what the care percentages ought to have been between 14 June 2018 and 6 August 2018.

46.In all the circumstances, for the above reasons, the decision under review is affirmed.

DECISION

The decision under review is affirmed.

This means that the care percentages remain at 100% to Mr Dang and 0% to Ms Dang for the period 14 June 2018 to 6 August 2018.